Hughes v. Johnson ( 1999 )

REVISED, October 27, 1999
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-40171
BILLY GEORGE HUGHES
Petitioner-Appellant
versus
GARY L. JOHNSON, DIRECTOR,
TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION
Respondent-Appellee
Appeal from the United States District Court
For the Southern District of Texas
October 5, 1999
Before KING, Chief Judge, and HIGGINBOTHAM and DAVIS, Circuit
Judges.
HIGGINBOTHAM, Circuit Judge:
Twelve years after the crime, a Texas jury convicted Billy
George Hughes of the capital murder of Texas state trooper Mark
Frederick and sentenced him to death. See Hughes v. State, 897
S.W.2d 285, 288-89 (Tex. Crim. App. 1994).1 This was the second
1
Hughes was initially tried for the murder in 1976 and was sentenced to death;
the conviction and sentence were affirmed on direct appeal. See id. at 288 n.1;
Hughes v. State, 563 S.W.2d 581 (Tex. Crim. App. 1978). In 1987, The Texas Court
of Criminal Appeals granted Hughes’s state postconviction application and
1
conviction and death sentence for this murder. The jury found
Hughes guilty of violating TEX. PENAL CODE ANN. § 19.03(a)(1),
which provides that a person commits capital murder if “the
person murders a peace officer who is acting in the lawful
discharge of an official duty and who the person knows is a peace
officer.”
I.
A.
On the evening of April 4, 1976, two Texas state troopers
pulled over the 1975 Ford LTD Hughes was driving on Interstate 10
near Sealy, Texas. See Hughes, 897 S.W.2d at 289. The troopers
were responding to a dispatcher’s report that a man driving a
similar car had attempted to use a stolen credit card at a nearby
motel. See id. After Hughes pulled onto an interstate exit ramp,
Trooper Frederick approached the driver’s side of the Ford. See id.
Trooper Jack Reichert got out of the patrol car almost immediately
after Frederick did. See id. Approaching the Ford behind
Frederick, Reichert heard a “muffled shot” and saw Frederick
“lurch” to the side. Frederick had sustained a fatal wound. As
the Ford sped away, Reichert shot several times at the car.
An abandoned car with matching description was found several
miles away. The car had many bullet holes, and its trunk contained
reversed Hughes’s conviction. See Hughes, 897 S.W.2d at 288 n.1; Ex parte
Hughes, 728 S.W.2d 372 (Tex. Crim. App. 1987).
2
a loaded, sawed-off shotgun and several other weapons. Two days
later, a helicopter approached a field where a suspect was
reportedly seen. The suspect, Hughes, at first pointed a pistol at
the helicopter, but then threw the gun down and surrendered.
Ballistics experts identified the pistol as the murder weapon.
The jury convicted, and at the punishment phase answered the
three special issues in the affirmative.2 First, the jury
determined that the conduct causing Trooper Frederick’s death was
committed “deliberately.” Id. at 289; see TEX. CODE CRIM. PROC. art.
37.071(b)(1) (West 1981). Trooper Reichert was certain that
Frederick had not fired his gun at any time, and there was evidence
that the murder weapon had an unusually hard trigger pull. See
Hughes, 897 S.W.2d at 290.
Second, the jury determined that there was a probability that
Hughes would commit criminal acts of violence that would constitute
a continuing threat to society. See id. at 291 & n.8; art.
37.071(b)(2). The evidence offered by the State in support of this
second special issue is quickly summarized. There was testimony by
Hughes’s ex-wife that Hughes beat her many times and that his acts
of criminal violence escalated during their marriage; testimony
that Hughes was disfellowshipped from his Jehovah’s Witness
congregation for writing bad checks and lying; testimony that
2
The third special issue asks whether “the conduct of the defendant in killing
the deceased was unreasonable in response to the provocation, if any, by the
deceased.” Art. 37.072(b)(3). The application of this provision is not at issue
in this case.
3
Hughes threatened to kill a church elder who sat in on the
disfellowship proceedings; that Hughes had been convicted for a
federal extortion offense in which he made several bomb threats, an
offense for which Hughes was on probation at the time of the
murder; testimony by an FBI agent who investigated the extortion
offense that he believed Hughes would be a continuing violent
threat to society; evidence of Hughes’s written plans to rob a bank
with firearms and the large quantity of guns and ammunition found
in Hughes’s car trunk; testimony by Hughes’s own witness, a prison
warden who stated that Hughes was a “con man”; testimony by an
assistant prison warden that Hughes was manipulative, dangerous,
and violent; testimony that Hughes aimed his pistol at the
helicopter just before his surrender.
On direct appeal, Hughes raised 55 points of error. Many of
the claims were stated separately under both the Federal and Texas
Constitutions. The Texas Court of Criminal Appeals affirmed
Hughes’s conviction and sentence in 1994, and the United States
Supreme Court denied certiorari. See Hughes v. Texas, 897 S.W.2d
285 (Tex. Crim. App. 1994), cert. denied, 514 U.S. 1112 (1995).
Hughes then filed a state action seeking postconviction
relief, which the Texas Court of Criminal Appeals denied in
February 1997. In September 1997, Hughes, represented by the same
attorney who defended him at trial in 1988, filed the instant 28
U.S.C. § 2254 habeas petition with 24 claims spread over a 232-page
petition. The district court stayed execution.
4
The district court in a published opinion granted the State’s
motion for summary judgment and dismissed Hughes’s § 2254 petition.
See Hughes v. Johnson, 991 F. Supp. 621 (S.D. Tex. 1998). The
court also denied Hughes a certificate of appealability (COA).
Hughes timely filed a notice of appeal and applied for a COA in
this court with a supporting brief. The State has filed a brief in
response.
B.
Hughes filed his federal habeas application in September 1997,
after the April 24, 1996 effective date of the Antiterrorism and
Effective Death Penalty Act (AEDPA), and is required to obtain a
COA before proceeding with his appeal. A COA will be granted only
if Hughes makes a substantial showing of the denial of a
constitutional right. See 28 U.S.C. § 2253(c)(2). The issue must
be debatable among jurists of reason to proceed further. See
Fuller v. Johnson, 114 F.3d 491, 495 (5th Cir.), cert. denied, 118.
S. Ct. 399 (1997).
II.
A.
Before proceeding to the substantive claims, we treat Hughes’s
contention that the standards of review prescribed by the AEDPA are
unconstitutional. Wrapping his argument in Marbury v. Madison, 5
U.S. (1 Cranch) 137 (1803), Hughes maintains that the standards
5
violate the command of Article III of the Constitution in that they
delegate the “final exercise” of the “judicial power of the United
States” to decide federal constitutional issues to state court. He
argues that this review process “guts the Supremacy Clause” by
giving conclusive effect to state court decisions on constitutional
questions in an Article III case or controversy. The argument
continues that these constitutional questions should be reviewed de
novo by federal courts.3
We recently rejected the same arguments in a § 2254 appeal
filed on behalf of a death row inmate by the same attorney who has
filed Hughes’s appeal. See Corwin v. Johnson, 150 F.3d 467, 472
(5th Cir. 1998). The appeal “must be reviewed in accordance with
this Circuit’s interpretations of the AEDPA, as established in
Drinkard.” Id.
B.
Hughes has not briefed here several claims made below: that
the trial court erred in instructing the jury as to the meaning of
the words “intentionally” and “knowingly”; that the jury’s finding
regarding his use of a deadly weapon violated the Ex Post Facto
Clause; that the prosecution made several improper jury arguments
during the trial’s punishment phase; that the trial court
improperly denied his motion to suppress evidence seized in
3
Hughes has not argued his substantive claims within the context of the standards
of review as modified by the AEDPA.
6
violation of the fourth Amendment; and that the trial court
violated his constitutional rights by sustaining the prosecution’s
challenge of a veniremember for cause. Issues not raised in the
brief filed in support of Hughes’s COA application are waived. See
Moawad v. Anderson, 143 F.3d 942, 945 n.1 (5th Cir. 1998).
C.
Hughes brings us eleven issues, and we will address each in
turn.4
4
The issues are as follows:
1. Whether the trial court should have specifically instructed the
jury that the term “probability,” as used in the context of the
second special issue at the penalty phase, meant “more likely than
not,” and whether this claim was procedurally defaulted.
2. Whether the trial court erred in permitting Dr. John
Nottingham, a rebuttal witness for the State, to testify during
the penalty phase, allegedly based on a 1976 examination of Hughes
conducted without the presence of counsel in violation of Estelle
v. Smith, 451 U.S. 454 (1981).
3. Whether the trial court erred in refusing to instruct the jury
as to the consequences of its answers to the special issues.
4. Whether the evidence was sufficient to support the jury’s
answers to the first and second “special issues” at the penalty
phase:
(a) Whether the conduct which caused the death of the
victim was committed “deliberately”;
(b) Whether there was a probability that Hughes would
commit criminal acts of violence that would constitute
a continuing threat to society.
5. Whether the Texas Court of Criminal Appeals erred in refusing
to consider mitigating evidence “independently.”
6. Whether the jury’s reliance on information that was at least 12
years old, with regard to the second special issue, violated
Hughes’s Eighth Amendment rights.
7. Whether jury instructions at the penalty phase of the trial
violated Hughes’s constitutional rights under Penry v. Lynaugh,
7
1.
Hughes contends that the trial court erred in refusing to
instruct the jury in the second special issue that the word
“probability” means “more likely than not” rather than “some
probability” or “any probability.”
He observes that at the penalty phase, the State called a
psychiatrist, Dr. John Nottingham, as a rebuttal witness. Dr.
Nottingham had examined Hughes following the offense in 1976 and
had concluded that he was legally sane. On cross-examination, Dr.
Nottingham testified that he did not know what the Texas
legislature meant when it used the word “probability” in drafting
the second special issue regarding “future dangerousness,” Hughes’s
counsel having suggested that it meant “more likely than not.” Dr.
Nottingham declined to “put a number on it.” Responding to the
492 U.S. 302 (1989):
(a) Alleged burden-shifting instruction;
(b) Use of word “should” rather than “must”;
(c) Trial court’s failure to instruct jury on effect
of mitigating evidence.
8. Whether jury instructions on the victim’s status as a “peace
officer” improperly amounted to a directed verdict on an essential
element of the offense.
9. Whether the inclusion of irrelevant instructions on causation
violated Hughes’s constitutional rights.
10. Whether the statutory requirement that 10 or more jurors vote
“No” to enter a negative finding on special issues violated
Hughes’s Eighth and Fourteenth Amendment rights.
11. Whether the prosecution withheld exculpatory evidence in
violation of Brady v. Maryland, 373 U.S. 83 (1963).
8
defense counsel, he then added that when he used the term, it means
“any probability.”
Hughes concedes that a Texas trial court ordinarily is not
required to define the word “probability” in the context of the
second special issue, but he argues that Dr. Nottingham’s
“misinterpretation” of the word possibly gave the jury an erroneous
view of the law that the trial court was required to correct in its
instructions. Hughes also concedes that the Texas Court of
Criminal Appeals deemed this claim barred by Hughes’s failure to
advance a procedurally correct objection to the charge. He
maintains that, under TEX. CODE CRIM. P. art. 36.15, no
particularized objection is required as long as the defendant
offers “special requested instructions” to call the trial court’s
attention to the alleged error. He asserts that he requested
exactly such an instruction.
In rejecting a similar claim by Hughes on direct appeal, the
Court of Criminal Appeals determined that Hughes had failed to
preserve error on this issue because he “made no objection to the
court’s refusal to define ‘probability’ based on Nottingham’s
allegedly erroneous definition,” but he instead objected only that
the “term was unconstitutionally vague and that without guidance
the jury was left to speculate as to the meaning of the term.” See
Hughes, 897 S.W.2d at 301-02.
The district court concluded, and the state now argues, that
this claim was procedurally defaulted, based on the Texas appellate
9
court’s conclusion that Hughes failed to preserve this claim for
review. Hughes, 991 F. Supp. at 636.
The procedural default doctrine, resting on our confinement to
review of federal questions, precludes federal habeas review when
the last reasoned state court opinion addressing a claim explicitly
rejects it on a state procedural ground. See Ylst v. Nunnemaker,
501 U.S. 797, 801, 803 (1991). When the state court has relied on
an independent and adequate state procedural rule, federal habeas
review is barred unless the petitioner demonstrates either cause
and prejudice or that a failure to address the claim will result in
a fundamental miscarriage of justice. See Coleman v. Thompson, 501
U.S. 722, 750 (1991). The doctrine presumes that a state
procedural ground is adequate and independent – the rule must, for
instance, be regularly followed – and, ordinarily, the burden is on
the habeas petitioner to demonstrate otherwise. See Sones v.
Hargett, 61 F.3d 410, 416-17 (5th Cir. 1995) (citations omitted).5
In determining that Hughes had failed to preserve this claim
for appeal, the Texas Court of Criminal Appeals relied on a version
of Texas’s contemporaneous objection rule. See Hughes, 897 S.W.2d
at 301-02 (“[A]ppellant’s claim on appeal does not comport with his
5
Although federal courts will “presume the adequacy and independence of a state
procedural rule when the state court expressly relies on it in deciding not to
review a claim for collateral relief, . . . [t]he presumption of adequacy can be
rebutted . . . if the state’s procedural rule is not strictly or regularly
followed.” Sones, 61 F.3d at 416 (internal quotation marks and citations
omitted). “The Supreme Court has further defined this concept of adequacy . .
. to include a state procedural ground that is strictly or regularly applied
evenhandedly to the vast majority of similar claims.” Amos v. Scott, 61 F.3d
333, 339 (5th Cir. 1995).
10
objections at trial . . . .”); see also Muniz v. Johnson, 132 F.3d
214, 221 (5th Cir.) (citing TEX. R. APP. P. 52(a) as source of
contemporaneous objection rule), cert. denied, 118 S. Ct. 1793
(1998); Sheridan v. State, 950 S.W.2d 755, 757 (Tex. App. 1997)
(citing Rule 52(a) for requirement that complaint on appeal must
“comport” with complaint made at trial). We have held that Texas
applies its contemporaneous objection rule “strictly and regularly”
and that it is an “independent and adequate state-law procedural
ground sufficient to bar federal habeas review of federal claims.”
Amos v. Scott, 61 F.3d 333, 345 (5th Cir. 1995).
Hughes contends that TEX. CODE CRIM. PROC. art. 36.15 required
only that he present “special requested instructions” to the trial
court and that “no other exception or objection to the court’s
charge shall be necessary to preserve any error reflected by any
special requested instruction which the trial court refuses.” But
this argument takes the statute too far. This language means only
that to preserve an error for an appeal regarding jury
instructions, a party who has already requested a certain
instruction is not then required to object to the charge actually
given by the trial court, after the court has decided to reject the
requested instruction. See Vasquez v. State, 919 S.W.2d 433, 435
& n.4 (Tex. Crim. App. 1996).
Under TEX. R. APP. P. 52(a), a party still must inform the
trial court of any “specific defect” in the charge in order to
preserve error. See Davis v. State, 905 S.W.2d 655, 664 (Tex.
11
Ohio App. 1995). Under art. 36.15, “[a] defendant preserves error for
appellate review if the request is specific enough to put the trial
court on notice of an omission or error in the charge.” Brazelton
v. State, 947 S.W.2d 644, 647 (Tex. App. 1997). It is undisputed
that Hughes did not make the argument to the state trial court that
Dr. Nottingham’s suggestion that “probability” meant “any
probability” that Hughes would commit criminal acts of violence
created a misimpression that the trial court was required to
correct through jury instructions.
In any event, if both we and the courts preceding before us
are in error, Hughes’s claim lacks merit. As conceded by Hughes,
the Texas courts repeatedly have rejected claims that in the
penalty phase of a capital murder case the trial court is required
to define terms, such as “probability,” which are included in the
statutory special issues. See Corwin v. State, 870 S.W.2d 23, 36
(Tex. Crim. App. 1993) (en banc). Those courts have held that the
failure to define such terms within TEX. CODE CRIM. P. art. 37.071,
§ (b)(2) does not render them unconstitutionally vague under the
Eighth and Fourteenth Amendment. See id. We similarly have
rejected contentions that “probability” and other terms included in
the statutory special issues are unconstitutionally vague. See
Woods v. Johnson, 75 F.3d 1017, 1033-34 (5th Cir. 1996) (and cases
cited therein).
Of course, since trial, Hughes has been arguing more than that
the trial court’s definition of “probability” was
12
unconstitutionally vague; he has maintained that the trial court
was required to correct any misperception regarding the meaning of
that term that was created by Dr. Nottingham’s testimony. “The
proper standard for reviewing a challenged jury instruction in the
capital sentencing context is ‘whether there is a reasonable
likelihood that the jury has applied the challenged instruction in
a way that prevents the consideration of constitutionally relevant
evidence.’” Drinkard, 97 F.3d at 757 (quoting Boyde v. California,
494 U.S. 370, 380 (1990)). “This ‘reasonable likelihood’ standard
does not require the petitioner to prove that the jury ‘more likely
than not’ interpreted the challenged instruction in an
impermissible way; however, the petitioner must demonstrate more
than ‘only a possibility’ of an impermissible interpretation.” Id.
(citing Boyde, 494 U.S. at 380).
Hughes’s contention is that the single reference by Dr.
Nottingham to the phrase “any probability” required the trial court
to ensure that the jury understood that such term meant “more
likely than not.” He argues this point, notwithstanding Texas
cases holding that its trial courts are not required to define the
term “probability.” As we put it,
[t]o the extent that the words strike distinct chords in
individual jurors, or play to differing philosophies and
attitudes, nothing more is at work than the jury system
. . . . The answer is that such words, often of great
consequence, do have a common understanding in the sense
that they ultimately mean what the jury says by their
verdict they mean.
James v. Collins, 987 F.2d 1116, 1120 (5th Cir. 1993) (quoting
13
Milton v. Procunier, 744 F.2d 1091, 1096 (5th Cir. 1984)). Given
these statements, Hughes cannot say that his proposed definition of
“probability” is any more appropriate than the allegedly erroneous
interpretation of the term stated by Dr. Nottingham. Hughes has
not made a substantial showing of the denial of a constitutional
right as to this claim.
2.
Hughes contends that the trial court erroneously permitted Dr.
Nottingham to testify as a rebuttal witness at the penalty phase.
Dr. Nottingham, he urges, used his notes from his examination of
Hughes in 1976. Hughes maintains that the examination in 1976
violated Estelle v. Smith, 451 U.S. 454 (1981), and that Dr.
Nottingham’s use of that interview was tainted.
On direct appeal, the Texas Court of Criminal Appeals rejected
this claim on its merits. See Hughes, 897 S.W.2d at 302-04. It
explained that the State had conceded that Hughes’s 1976 interview
was conducted in violation of Smith. See id. at 302. Dr.
Nottingham had examined Hughes again in 1988 in the presence of
Hughes’s attorneys; in doing so, he had refreshed his memory with
notes taken during the 1976 examination. See id.
Hughes’s attorney asked Dr. Nottingham in a voir dire
examination whether he could have recalled inconsistencies between
Hughes’s answers in 1976 and 1988 without having referred to the
1976 report. See id. at 302-03. Dr. Nottingham responded that,
14
but for his 1976 notes, he probably would not have remembered
Hughes’s stated reason for traveling around the country at the time
of the offense. See id. at 303.
The Texas Court of Criminal Appeals rejected Hughes’s Estelle
v. Smith contention because “[r]eview of Nottingham’s testimony
shows that his conclusions were based upon the 1988 interview
alone.” Id. That court found that “[t]here is no indication in
the record that [Nottingham’s] testimony was influenced by or
derived from his earlier examination of [Hughes].” Id. at 304.
Hughes does not now specifically dispute the Texas appellate
court’s factual findings and legal conclusion. In determining that
Nottingham’s testimony was neither “influenced by or derived from”
the earlier interview, the court cited Ex parte Woods, 745 S.W.2d
21, 26 (Tex. Crim. App. 1988), which in turn relied on White v.
Estelle, 720 F.2d 415 (5th Cir. 1983). More recently, this court
addressed a habeas appeal by the same state prisoner who had filed
the state postconviction application in Ex parte Woods. See Woods
v. Johnson, 75 F.3d 1017 (5th Cir. 1996). This court rejected the
prisoner’s Estelle v. Smith claim primarily on the ground that any
error was harmless because the psychiatrist’s testimony was based
on a hypothetical question rather than on the tainted examination
of the prisoner, see id. at 1026-33, but it also “agree[d] with the
assessment of the state habeas court that ‘[a] jury could not
reasonably construe [the psychiatrist’s] testimony . . . as being
influenced by or derived from the court-ordered pretrial
15
psychiatric examination of applicant.’” Id. at 1028 (citing Woods,
745 S.W.2d at 26) (emphasis added). This court concluded in part
that the psychiatrist’s opinion testimony as to future
dangerousness “derived from and related to the acts of violence
detailed in the prosecutor’s [hypothetical] question . . . , not
from [the psychiatrist’s] examination of [the prisoner].” Id. at
1029.
A review of Dr. Nottingham’s testimony at the penalty phase
shows that the prosecutor’s questions were tailored to elicit
responses about Nottingham’s 1988 examination of Hughes. Hughes
has not suggested how Nottingham’s testimony might have been
“influenced by and derived from” his 1976 examination of Hughes.
We are persuaded that the Texas appellate court’s conclusion
that Nottingham’s review of the notes did not influence his
testimony was not an “unreasonable application of[] clearly
established Federal law[] as determined by the Supreme Court.” See
28 U.S.C. § 2254(d)(1). We also reject Hughes suggestion that the
“taint” of the earlier examination was incurable; that it created
an absolute bar to any expression of opinion by Nottingham.
3.
Hughes contends that the trial court erred in refusing to
instruct the jury that, if Hughes were given a life sentence, he
would be required to serve at least 20 years in prison without the
possibility of parole. Citing Simmons v. South Carolina, 512 U.S.
16
154 (1994), Hughes contends that the Texas statutory prohibition of
disclosure to the jury of the consequences of its verdict precluded
the jury from rationally determining the consequences of its
deliberations. He suggests that the Texas statutory scheme, which
shielded information regarding the 20-year mandatory minimum prison
term, posed a significant risk that jurors might mistakenly assume
that he could potentially have been “paroled immediately” in the
absence of a death sentence. Hughes raises a similar issue with
respect to the trial court’s refusal to instruct the jury with
respect to the consequences of its finding on the “so-called
‘affirmative finding on use of a deadly weapon’ issue,” under TEX.
CODE CRIM. P. art. 42.12, § 3(g), and art. 42.18, § 8(b). Citing
Caldwell v. Mississippi, 472 U.S. 320, 328-29 (1985), he suggests
that these instructions are unconstitutional because they “do not
explicitly require the jury to assume legal and moral
responsibility for imposing the death penalty.”
At the time of Hughes’s trial, TEX. CODE CRIM. P. art. 37.071(g)
stated: “The court, the attorney for the state, or the attorney for
the defendant may not inform a juror or a prospective juror of the
effect of failure of the jury to agree on an issue submitted under
this Article.” (This provision has since been recodified at art.
37.071, § 2(a) (Supp. 1998).)
In rejecting Hughes’s Simmons-type claim on direct appeal, the
Court of Criminal Appeals stated, “[t]his Court has repeatedly held
that declining to inform the jury of the effect of their answers to
17
the submitted issues does not render article 37.071
unconstitutional.” Hughes, 897 S.W.2d at 301. This holding was
based on pre-Simmons case law. See id.
In Simmons, the Supreme Court held that a trial court in a
South Carolina capital murder case was required to instruct a
sentencing jury about the parole implications of a life sentence
where future dangerousness is at issue and where the alternative
life sentence is without parole eligibility. See Simmons, 512 U.S.
at 161-62.
We have repeatedly rejected identical claims based on Simmons.
In Allridge v. Scott, 41 F.3d 213, 220-22 (5th Cir. 1994), we
distinguished Simmons on the ground that South Carolina law in
Simmons made the petitioner legally ineligible for parole, whereas
Texas capital defendants who are sentenced to life become eligible
for parole after a term of years. See also Muniz, 132 F.3d at 224;
Johnson v. Scott, 68 F.3d 106, 111 (5th Cir. 1995); Montoya v.
Scott, 65 F.3d 405, 416-17 (5th Cir. 1995). But see Brown v.
Texas, 118 S. Ct. 355, 355-57 (1997) (Stevens, J.) (opinion
regarding denial of certiorari, indicating that Texas’s statutory
prohibition of instructing juries about parole eligibility is in
“obvious tension” with Simmons). Hughes has not made a substantial
showing of the denial of a constitutional right as to his Simmons
claim.
Hughes’s variation upon this theme rests on Caldwell v.
Mississippi, 472 U.S. 320 (1985), under which “it is
18
constitutionally impermissible to rest a death sentence on a
determination made by a sentencer who has been led to believe that
the responsibility for determining the appropriateness of the
defendant’s death rests elsewhere.” Id. at 328-29. We have
observed:
In Dugger v. Adams, 489 U.S. 401, . . . (1989), the
Supreme Court clarified its holding in Caldwell and held
that to “establish a Caldwell violation, a defendant
necessarily must show that the remarks to the jury
improperly described the role assigned to the jury by
local law.” Id. at 407 . . . ; accord Sawyer v. Butler,
881 F.2d 1273, 1285 (5th Cir. 1989) (en banc), aff’d,
497 U.S. 227 . . . (1990). In evaluating a Caldwell
claim, we look to the “total trial scene,” including jury
selection, the guilt phase of the trial, and the
sentencing hearing, examining both the court’s
instructions and counsel’s arguments to the jury. Id. at
1286-87.
Montoya, 65 F.3d at 420. Hughes concedes that “throughout the voir
dire examination, each prospective juror was told of the
consequences of affirmative answers to each of the penalty
questions,” but he suggests that one or more jurors “may well have
forgotten” these “preliminary remarks.” He argues that the trial
court was thus constitutionally required to include a specific
instruction regarding the consequences of the jury’s answers to the
special issues.
In Montoya, a voir dire instruction like the one referred to
by Hughes was held to be sufficient to inform the jury of its role
under Texas law. See Montoya, 65 F.3d at 421. Moreover, in its
closing statement, the prosecution stated
I suggest to you the severity of the punishment should
19
fit the severity of the crime.
Under the law you have only two choices: Life
imprisonment or death by lethal injection.
You will determine which of those punishments the
defendant should be sentenced to by your answers to three
special issues, which probably all of you know by heart
now because we went over them individually when you were
selected as a juror.
If the jurors had forgotten the instructions on the
consequences of their answers to the special issues, these
statements reminded them of their role. In his closing statement,
Hughes emphasized the jury’s responsibility by asking the jury in
his opening “not to kill Bill George Hughes.” The “total trial
scene” makes plain that the jury well knew its role. The Caldwell
claim is meritless.
4.
Hughes contends that the evidence was constitutionally
insufficient under the standard of Jackson v. Virginia, 443 U.S.
307 (1979), to support “Yes” findings to the first two special
issues: (a) that the conduct causing the death of Trooper Frederick
was committed deliberately, and (b) that Hughes probably would
commit criminal acts of violence that would constitute a continuing
threat to society. See TEX. CODE CRIM. P. art. 37.071(b)(1) and (2).
The State contends that claims of insufficient evidence to
support the special issues in Texas lack constitutional support.
The State argues that, even if the evidence at the penalty stage is
20
to be reviewed by the Jackson standard, a rational trier of fact
could have answered “Yes” to both special issues; the State also
points out that, on direct appeal, the Court of Criminal Appeals
rejected evidentiary challenges on both special issues.
The Court of Criminal Appeals did address and reject Hughes’s
sufficiency-of-the-evidence challenges on the merits, using the
Supreme Court’s Jackson standard. See Hughes, 897 S.W.2d at 289-
93. The federal district court agreed with the respondent’s
contention that, “under the circumstances and so long as the
sentence is not arbitrary or capricious, no review is required of
the jury’s answers to the special issues under the teachings of
Teague[ v. Lane].” Hughes, 991 F. Supp. at 628. The court noted
that under Teague, “federal habeas may not be granted on rules of
constitutional law yet to be announced.” See id. at n.4. The
court did not address whether this court’s precedent permitted
review of the evidentiary sufficiency of special issues. See id.
The court, however, proceeded to address the merits of the claims
“in an abundance of caution.” Id.
We have on several occasions addressed the merits of
challenges to the sufficiency of evidence supporting a jury’s
answers to special issues at the penalty phase of a death penalty
trial. See, e.g., Callins v. Collins, 998 F.2d 269, 276 (5th Cir.
1993); Johnson v. Collins, 964 F.2d 1527, 1530-31 (5th Cir. 1992);
Fierro v. Lynuaugh, 879 F.2d 1276, 1280 (5th Cir. 1989); Evans v.
McCotter, 790 F.2d 1232, 1242-43 (5th Cir. 1985). Assuming but not
21
deciding that we must do so, we will address this claim.
Our standard of review for an insufficient evidence claim in
a federal habeas corpus proceeding is “whether, after reviewing the
evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of
the crime beyond a reasonable doubt.” Jackson, 443 U.S. at 319. In
applying this standard, a federal habeas court refers to the
state’s criminal law for the substantive elements of the offense.
(a) First Special Issue
As for the first special issue, Hughes emphasizes that the
term “deliberately” is not functionally equivalent to the terms
“intentionally” and “knowingly,” which are among the elements of
murder under TEX. PENAL CODE §§ 6.03 and 19.02. He asserts that only
Trooper Reichert’s testimony could conceivably support a finding
that he acted “deliberately,” but he contends that Reichert’s
testimony was in fact “utterly inadequate to provide a sufficiently
rational evidentiary foundation” for such a finding. Hughes
identifies a number of evidentiary inferences that were allegedly
assumed by Reichert’s testimony and then attempts to show that
other trial evidence rendered those inferences either impossible or
extremely unlikely.
As we have explained, under the first special issue,
“deliberately” is not a term of art and is not defined in the jury
instructions. See Johnson, 964 F.2d at 1531. Instead, the term
22
“‘is to be taken and understood in its normal use and common
language.’” Id. (quoting Carter v. State, 717 S.W.2d 60, 67 (Tex.
Crim. App. 1986)). The prosecution need not show that the
defendant “‘carefully weighed or considered or carefully studied
the situation immediately prior to killing the deceased in order
for the jury to’ decide the defendant acted ‘deliberately.’” Id.
(quoting Carter, 717 S.W.2d at 67). In Webster’s Dictionary,
“‘deliberately’ is defined as ‘with careful consideration or
deliberation; circumspectly; not hastily or rashly; slowly; as a
resolution deliberately formed.’” Id. For there to be an act of
deliberateness, “‘there must be the moment of deliberation and
determination on the part of the actor to kill. Such determination
must necessarily be found from the totality of circumstances in the
individual case.’” Id. (citing Cannon v. State, 691 S.W.2d 664,
677 (Tex. Crim. App. 1985)).
The Court of Criminal Appeals concluded that a rational trier
of fact could have believed the State’s theory of the case and
disbelieved Hughes’s version of the events. See Hughes, 897 S.W.2d
at 290. It found that Hughes, who had been traveling around the
country for months, had “numerous reasons to fear being pulled over
by DPS troopers,” including violating the terms of his probation
for the extortion offense by leaving Alabama, driving a stolen
rental car, and living off of forged checks and stolen credit
cards. Just before the shooting, Hughes had fled a nearby motel
after being questioned about a stolen credit card. Finally, the
23
trunk of the car he was driving was full of guns and ammunition.
According to Trooper Reichert, Hughes sat in the car staring
straight ahead as Trooper Frederick approached. Reichert testified
that just after Frederick turned to face Hughes and just before
Frederick fell to the ground, he heard a single muffled gunshot.
He was positive that Frederick had not fired his gun at any time.
The State’s firearms expert testified that an “unusually hard pull”
was required to fire the gun Hughes used, which would have taken a
deliberate act.
Hughes’s testimony was that he fired only after being fired
upon first by the troopers, after he reached for his wallet in the
glove compartment so that he could retrieve his driver’s license.
Hughes now calls Trooper Reichert’s account “ridiculous, absurd,
and inherently incredible.” He contends that other evidence
suggests that either Reichert or Trooper Frederick “drew his gun
and fired one o[r] more shots before Hughes fired.” This
contention is based primarily on evidence that, after the shooting,
Frederick’s gun was found in Frederick’s hand, and that it was only
half-loaded and apparently inoperable. According to Hughes, the
record establishes Frederick’s “exceptional competence as a law
enforcement officer,” making it nearly impossible that he would
have carried around a half-loaded, inoperable gun for a week before
he was shot.
As Hughes concedes, Dr. Joseph Jachimczyk testified that
Frederick could have drawn his gun after being shot but before
24
dying. A firearms expert testified that the gun was inoperable,
although it could have been made so by striking the ground after
Frederick was shot. Reichert testified that Frederick did not fire
his pistol and that he did not know whether Frederick drew his gun
before or after Hughes fired.
Hughes’s contention rests largely on the notion that it was
nearly impossible for Frederick to be found at the scene and not
have fired his gun. This scenario, ably argued, depends almost
entirely on the argument that Frederick never would have conducted
a highway stop with a half-loaded, inoperable pistol. But this
determination was for the jury. Trooper Frederick died of a single
bullet that passed through his left arm through his chest cavity
where it struck his heart and aorta. He lived ten to fifteen
minutes but was quickly down. There was medical testimony that
Frederick could have crawled or staggered back the ten feet or so
behind Hughes’s car where he was found. The jury could have
concluded that Trooper Riechert’s testimony was credible - that
Trooper Frederick was shot standing at the front of Hughes’s car
door, driver’s side, while his left shoulder was turned to the
window. The Court of Criminal Appeals did not unreasonably apply
the Jackson v. Virginia standard in finding the evidence sufficient
to show that Hughes “deliberately” killed Trooper Frederick.
(b) Second Special Issue
Regarding “future dangerousness,” Hughes argues that the
25
State’s evidence was “wholly insufficient to establish the
probability of his future dangerousness with the degree of
certainty necessary to render the jury’s verdict a rational one.”
He argues that the nature and circumstances of the offense charged
did not in themselves establish such “unnecessary infliction of
pain and suffering, callousness, or depravity” as to warrant the
finding. Hughes maintains that his previous criminal history shows
that, except for the three-year period preceding the murder, he has
committed “no criminal or other anti-social act whatever,” and,
even during that three-year period, he engaged only in threats of
violence. He also asserts that although the State went to great
lengths to portray him as a thief, liar, and manipulative “con
artist,” no demonstrable relationship exists between these traits
and the potential for being a violent or dangerous person in the
future. Hughes argues that Dr. Nottingham, the State’s own
witness, could not state with any degree of certainty that Hughes
would likely commit criminal acts of violence in the future. He
claims that the totality of “credible” evidence “overwhelmingly
militates against the imposition of the death penalty.”
The Court of Criminal Appeals rejected Hughes’s challenge.
See Hughes, 897 S.W.2d at 291-93. The court acknowledged that none
of Hughes’s prior convictions involved physical violence. See id.
at 293. The court also noted that the instant offense involved
neither “the type of calculated prior planning” nor “facts that
were so shockingly brutal or heinous” as to alone support an
26
affirmative finding on this issue. Id. at 291. However, the court
observed that Hughes’s extortion conviction involved threats of
violence, that the testimony of Hughes’s ex-wife showed that Hughes
was “capable of more than threats of violence,” and that Hughes’s
collection of weapons during his string of crimes in the months
before the shooting “indicates that [Hughes’s] violent tendencies
were escalating.” Id. at 293.
Hughes faces a formidable task in establishing that the state
appellate court’s ruling as to this claim was an unreasonable
application of clearly established federal law. The Texas Court of
Criminal Appeals listed considerable evidence: Hughes’s carrying
of guns in the trunk of his stolen rental car; his aiming a pistol
at the helicopter before his arrest; and his written plans to rob
a bank. See id. at 291-92. The Court of Criminal Appeals pointed
to evidence that Hughes’s prior extortion conviction and additional
actions involved threats of violence, that Hughes’s string of
crimes in the months preceding the homicide involved a personal
accumulation of firearms and ammunition, and that Hughes had in
fact engaged in violent acts against his then-wife. See id. at
293. It did not unreasonably apply the Jackson standard in
concluding that a rational trier of fact could have reached the
same conclusion beyond a reasonable doubt.
5.
Relatedly, Hughes contends that the “totality of the evidence
27
in this monumental record overwhelmingly militates against the
imposition of the death penalty,” even if the State’s evidence by
itself were “minimally” sufficient to support the jury’s
affirmative findings with regard to the special issues. Citing
Solem v. Helm, 463 U.S. 277 (1983), he maintains that art. 37.071,
as applied to him, violates the Eighth Amendment because the death
sentence is grossly disproportionate in light of the uncontradicted
mitigating evidence.
Hughes also argues that the Court of Criminal Appeals erred in
refusing to consider the mitigating evidence “independently,”
suggesting that the appellate court should have conducted a
de novo review of that evidence. He maintains that a state
appellate court’s limitation of its review in capital cases to the
constitutional sufficiency of aggravating factors to support a
death sentence, while “totally ignoring” compelling and
uncontradicted mitigating evidence, violates his due process
rights. Hughes asserts that the Court of Criminal Appeals’s
refusal to review the mitigating factors independently violated his
right to “meaningful appellate review of his death sentence” under
the Constitution. He lists several allegedly mitigating factors
that the state appellate court refused to consider, focusing mainly
upon evidence that, except for the three-year period preceding the
killing of Trooper Frederick, his life has been crime-free.
On direct appeal, the Court of Criminal Appeals refused to
conduct an independent review of the aggravating and mitigating
28
evidence to determine Hughes’s “deathworthiness.” Hughes, 897
S.W.2d at 294. The court stated that in Pulley v. Harris, 465 U.S.
37 (1984), the Supreme Court held that such review is not required
under the Eighth and Fourteenth Amendments. See id.
(a) Eighth Amendment Claim
In Harris, the Supreme Court held that a state appellate court
was not required to perform a proportionality review by comparing
the death sentence before it to death sentences imposed in other
cases. See id. at 43-44, 50-51.
Hughes emphasizes that Harris distinguished between two types
of proportionality review. The first type asks simply whether the
death penalty is inherently proportionate “to the [statutory] crime
for which it was imposed.” Harris, 465 U.S. at 43 & n.6. The
second type assumes that “the death sentence is not
disproportionate to the crime in the traditional sense,” but
“purports to inquire instead whether the penalty is nonetheless
unacceptable in a particular case because disproportionate to the
punishment imposed on others convicted of the same crime.” Id. at
43.
Hughes asserts that, during the last nine years, Texas
appellate courts have sustained death sentences “on only minimally
sufficient aggravating evidence” and will no longer “independently
consider a defendant’s mitigating evidence at all,” whereas the
same courts in the late 1970s and early 1980s would focus on a
29
defendant’s “deathworthiness” by weighing the aggravating factors
against mitigating factors. Hughes contends that the Court of
Criminal Appeals misconstrued Harris in concluding that the Supreme
Court did not require such an independent review on direct appeal
from a death sentence. He argues that Harris rejected only the
notion that a defendant who has been sentenced to death is entitled
to a “comparative proportionality review,” by which the
constitutional propriety of his death sentence would be measured by
comparison with other death-penalty cases. Hughes emphasizes that
he did not seek such a review on direct appeal.
Inasmuch as Hughes seeks to raise an Eighth Amendment
proportionality claim now, it is his own analysis of Harris that is
incorrect. He is not in fact contending that his death sentence is
unconstitutional under the first type of proportionality review
(although he implies that this is his argument) because he does not
suggest that the death penalty is disproportionate to the statutory
offense of the intentional murder of a peace officer in Texas.
Instead, he suggests that his death sentence is disproportionate in
the circumstances of his case because mitigating circumstances
should have rendered him ineligible for the death penalty.
Implicit in this suggestion is the notion that the death penalty
would be a proportionate sentence for other Texas capital
defendants. The claim is barred by Harris, as the state appellate
court is not required to conduct such a comparative proportionality
review.
30
(b) Fourth Amendment Claim
Hughes argues that due process requires that he be afforded
“independent” appellate review of whether mitigating circumstances
undermine his “deathworthiness.” Hughes implicitly acknowledges
that no Supreme Court or Fifth Circuit authority expressly requires
the “independent” review that he requested from the state appellate
court. In a creative turn, he cites Honda Motor Co., Ltd. v.
Oberg, 512 U.S. 415 (1994). In Honda, the State of Oregon had
constitutional standards limiting punitive damages and restricting
their post-verdict review. See Honda, 512 U.S. at 418. The
Supreme Court concluded that the statute’s abrogation of the
common-law protection against excessive punitive-damages awards
violated due process. See id. at 430-32. Hughes contends that the
Texas appellate court’s refusal to review his death sentence
“independently” similarly violates due process.
Hughes’s reliance upon Honda is unconvincing. Of course,
“[s]tate capital sentencing procedures must . . . satisfy the
requirements of the Due Process Clause of the Fourteenth
Amendment.” Williams v. Cain, 125 F.3d 269, 281 (5th Cir. 1997)
(citing Clemons v. Mississippi, 494 U.S. 738, 746 (1990)), stay
granted, 118 S. Ct. 2338 (Jun. 18, 1998). When a state provides
for the imposition of the death penalty
in the discretion of the trial jury, . . . the
defendant’s interest in the exercise of that discretion
is [not] merely a matter of state procedural law. The
31
defendant in such a case has a substantial and legitimate
expectation that he will be deprived of his liberty only
to the extent determined by the jury in the exercise of
its statutory discretion, and that liberty interest is
one that the Fourteenth Amendment preserves against
arbitrary deprivations by the State.
Id. (quoting Hicks v. Oklahoma, 447 U.S. 343, 346 (1980)) (internal
quotation marks omitted).
Some states require independent review of a trial court’s
imposition of a death sentence, but Texas does not. See Harris,
465 U.S. at 44. We repeat, Texas is a “non-weighing state” in that
its capital-sentencing scheme does not direct the appellate court
or even the jury to “weigh” aggravating factors against mitigating
ones. See James v. Collins, 987 F.2d 1116, 1120 (5th Cir. 1993);
Williams, 125 F.3d at 281, 283. In such states, “statutory
aggravating factors serve principally to address the concerns of
the Eighth Amendment--that is, the role of the statutory
aggravators is to narrow and channel the jury’s discretion by
separating the class of murders eligible for the death penalty from
those that are not.” Williams, 125 F.3d at 283. For the purpose
of initially determining whether a defendant is “death-eligible,”
the jury need find only a statutory aggravating factor. Id.
Hughes’s contention that he was entitled to an “independent”
consideration on direct appeal of mitigating circumstances is not
supported by this precedent.
6.
32
Emphasizing that almost all of the evidence relied upon by the
State to support a finding of “future dangerousness” in the second
special issue dated from at least 12 years before his 1988 trial,
Hughes contends that the “passage of time had made the
evidence . . . inherently unreliable” and that the evidence could
not provide a “constitutional foundation” to support a death
sentence. He relies on Simmons, 512 U.S. 154, for the proposition
that the Eighth Amendment requires a “heightened standard” for the
reliability of evidence offered in support of a death sentence.
Hughes asserts that, at this time, he has not committed a criminal
act or engaged in any other “antisocial conduct” in more than 20
years and that he has shown, by his “exemplary public behavior,
educational attainments, [and] charitable works,” that he does not
pose a risk of future danger to society.
First, we are uncertain whether this claim was exhausted,
although the district court rejected it on the merits. See Hughes,
991 F. Supp. at 631. Citing Jurek v. Texas, 428 U.S. 262 (1976),
the district court in a careful opinion observed that the Supreme
Court had approved Texas’s death-sentencing scheme by stating that
“‘all possible relevant information about the individual defendant’
should be presented to the decision maker.” Id. (citing Jurek, 428
U.S. at 263). The district court observed that the Supreme Court
in Simmons supported the use of all available evidence, contrary to
Hughes’s apparent interpretation of that case. See id. (citing
Simmons, 512 U.S. at 163). The court emphasized that during the
33
penalty phase Hughes himself presented evidence that was older than
that he now asserts is “inherently unreliable.” Id.
The State replies that no statutory or case authority places
an “age limit” on the information that may be considered by a jury
in determining whether there is a probability that the defendant
would commit criminal acts of violence that would constitute a
continuing threat to society. Hughes is thus asking this court to
approve a “new rule” of constitutional law. Regardless, the
state’s rejection of this claim was not contrary to and did not
involve an “unreasonable application of[] clearly established
Federal law[] as determined by the Supreme Court of the United
States.” 28 U.S.C. § 2254(d)(1).
7.
Hughes mounts a three-pronged assault on the trial court’s
jury instructions at the penalty phase. First, he argues that the
court’s instruction on mitigation impermissibly shifted the burden
of proof to him by requiring that at least 10 jurors credit the
mitigating evidence he offered, rather than requiring the jury to
find unanimously beyond a reasonable doubt that his mitigating
evidence did not militate against imposition of the death penalty.
Second, Hughes contends that the court erred in instructing the
jury that it “should,” rather than “must,” answer “No” to any of
the special issues if it believed that circumstances “mitigated
against” the death penalty, which allegedly gave the jury
34
“unlimited” discretion to “disregard” mitigating evidence. Third,
Hughes maintains that the charge failed to apprise the jury of how
to “reconcile the mitigation instruction with its obligation to
answer the penalty questions factually.” Hughes asserts that the
trial court failed to tell the jury what to do if it concluded not
only that the evidence mandated affirmative answers to the special
issues but also that his “mental, emotional, or psychological
state” before and during the shooting constituted a mitigating
circumstance warranting only a life sentence.
The State contends that, to mandate these special instructions
for anything less than a severe mental impairment, like the one at
issue in Penry v. Lynaugh, 492 U.S. 302 (1989), would require the
formulation of a “new rule” that would be barred by Teague
principles. In Drinkard, however, the petitioner asserted that
special instructions were required to address mitigating evidence
that he was intoxicated at the time of the offense. See Drinkard,
97 F.3d at 756. This court concluded that granting such relief
would not be a “new rule” under Teague because it would constitute
an “application of ‘a well-established constitutional principle to
govern a case which is closely analogous to those which have been
previously considered in the prior case law.’” Id. at 757 n.8
(quoting Penry, 492 U.S. at 319).
Hughes’s claims here address the following instructions:
2.
The burden of proof in this phase of the trial still
35
rests upon the State and never shifts to the Defendant.
Each Special Issue submitted must be proved by the State
beyond a reasonable doubt; therefore, before any issue
may be answered “Yes,” all jurors must be convinced by
the evidence beyond a reasonable doubt that the answer to
such issues should be “Yes.”
. . .
You are further instructed that if any Juror, after
considering the evidence and these instructions, has a
reasonable doubt as to whether the answer to a Special
Issue should be answered “Yes,” then such Juror should
vote “No” to that Special Issue in the Jury’s
deliberations.
If ten (10) Jurors or more vote “No” as to any Special
Issue, then the answer of the Jury shall be “No” to that
issue. . . .
You are further instructed that the Jury may not answer
any issue “Yes” unless it agrees unanimously. The Jury
may not answer any issue “No” unless then [sic] (10) or
more Jurors agree that the answer should be “No.”
. . .
5.
You are instructed that you should answer “No” to any of
the foregoing Special Issues if at least ten (10) or more
jurors find and believe, based upon the evidence
presented to you in this case, that the Defendant’s
character or record or any of the circumstances of the
offense mitigate against the imposition of the death
penalty in this case. (emphasis by petitioner)
On direct appeal, the Court of Criminal Appeals addressed and
rejected Hughes’s challenges to these instructions, which were
deemed “various Penry-related errors.” See Hughes, 897 S.W.2d at
298-300. The court did not address the claims separately as they
were set forth by Hughes but generally concluded the court’s
instructions permitted the jury to consider evidence of Hughes’s
36
alleged mental and emotional impairment within the scope of the
special issues, as required by Penry. See id. at 299-300.
As emphasized by the district court in disposing of Hughes’s
challenges to these instructions, the Texas special-issues scheme
has been deemed constitutional in the contexts of a wide variety of
other constitutional challenges. See Hughes, 991 F. Supp. at 632;
see, e.g., Jurek, 428 U.S. at 275-76; Franklin v. Lynaugh, 487 U.S.
164, 182 (1988) (and citations therein) (noting that the “Texas
scheme has continued to pass constitutional muster”).
(a) Alleged Burden-Shifting Instruction
Hughes admits that the trial court instructed the jury at the
punishment phase that “[t]he burden of proof in this phase of the
trial still rests with the State and never shifts to the
Defendant.” He nonetheless argues that another sentence in the
instructions shifted the burden back to him: “The Jury may not
answer any issue ‘No’ unless [ten] (10) or more Jurors agree that
the answer should be ‘No.’”
At the time of Hughes’s 1988 trial, the trial court was
statutorily required to instruct the jury that it “may not answer
any [special] issue ‘no’ unless 10 or more jurors agree.” See TEX.
CODE CRIM. P. art. 37.071(d)(2) (1981);6 see, e.g., Cordova v.
Johnson, 993 F. Supp. 473, 492 n.93 (W.D. Tex. 1998).
6
Under 1991 amendments, virtually the same language is retained. See art.
37.071(d)(2) (West Supp. 1998).
37
We have rejected similar claims. See, e.g., Jacobs v. Scott,
31 F.3d 1319, 1328 (5th Cir. 1994). In Mills v. Maryland, 486 U.S.
367, 384 (1988), the Supreme Court reversed a death sentence under
Maryland’s capital sentencing scheme whereby an instruction
required all 12 jurors to agree on the existence of a particular
circumstance before they could consider mitigating evidence. See
id. The Court held that this system impermissibly permitted a
single juror to block consideration of mitigating evidence and
required the jury to assess a death penalty. See id. We have
distinguished Mills on the ground that the Texas system permits all
jurors to consider any mitigating evidence and does not allow a
single juror to preclude the entire jury from considering such
evidence. See Jacobs, 31 F.3d at 1329. This court’s holding in
Jacobs appears to render Hughes’s claim meritless.
In any event, we are not persuaded that the challenged
instruction “shifts the burden” of proof to the defendant in a
capital trial, in that he was required to “persuade” 10 jurors that
mitigating evidence required a life sentence. The instructions
emphasize that the “burden of proof never shifts to the Defendant”
and that unanimous agreement is required to return “Yes” answers to
the special issues. Moreover, art. 37.071(e) required the court to
sentence the defendant to life imprisonment if the jury was unable
to answer any special issue. This provision ensured that anything
short of unanimous agreement on the special issues would spare the
defendant’s life. The claim is meritless.
38
(b) Use of “Should” Rather Than “Must”
Hughes maintains that the instruction that the jury “should”
answer “No” to any special issue as to which 10 or more jurors
agree gave jurors “virtually unlimited” discretion to reject
mitigating evidence.
This argument invokes the “technical parsing” of language
against which the Supreme Court has cautioned in the context of
reviewing jury instructions. See Johnson, 509 U.S. at 368. If the
instruction is analyzed with the “commonsense understanding of the
instructions in the light of all that has taken place at the
trial,” see id., then it is unreasonable to believe that a jury
confronted with a life-or-death decision would interpret the trial
court’s direction as providing a license to ignore evidence and
answer “Yes.” The Court of Criminal Appeals’s rejection of this
claim was not an “unreasonable application of[] clearly established
Federal law.” See 28 U.S.C. § 2254(d)(1).
(c) Failure to Instruct Jury on Effect of Mitigating Evidence
Hughes’s third contention here is more akin to a standard
Penry claim. He asserts that the jury was never told “what to do”
if it determined that the evidence mandated affirmative answers to
the three special issues, but also concluded that mitigating
evidence compelled a “life-sparing decision.” Citing Penry, 492
U.S. at 326, Hughes suggests that the charge failed to provide the
39
jury a “vehicle for expressing the view that [Hughes] did not
deserve to be sentenced to death based upon his mitigating
evidence” of “mental and emotional problems from 1973 onward.”
The trial court instructed the jury to answer “No” to any of
the special issues if at least 10 or more jurors determined that,
“based upon the evidence . . . the Defendant’s character or record
or any of the circumstances of the offense mitigate against the
imposition of the death penalty in this case.”
If Hughes was suffering from a mental or emotional problem
when he shot Trooper Frederick, the jury could have given effect to
that mitigating evidence in the first special issue addressing
whether the shooting was “deliberate.” See Lucas, 132 F.3d at 1082
(noting that the jury could have considered mitigating aspect of
defendant’s psychosis and schizophrenia under first special issue).
Hughes did not suggest that he was still suffering from such a
problem at the time of the shooting. Rather, he urged that he had
been rehabilitated during his twelve years in prison. We thus
reject his claim.
8.
Relying on United States v. Gaudin, 515 U.S. 506 (1995),
Hughes argues that the trial court violated his constitutional
right to have the jury render a verdict on each and every element
of the offense, when the court effectively instructed the jury that
Mark Frederick was a “peace officer acting in the lawful discharge
40
of an official duty.” He maintains that, under TEX. PENAL CODE §
19.03(a)(1), the victim’s status as a peace officer acting in the
discharge of duty was an essential element of the capital offense
with which he was charged. Hughes concedes that the trial evidence
was “amply sufficient” to prove that the Trooper Frederick was
indeed a peace officer acting in the lawful discharge of an
official duty.
In Gaudin, a direct appeal from a federal conviction, the
Supreme Court held that “the Constitution gives a criminal
defendant the right to demand that a jury find him guilty of all
the elements of the crime with which he is charged.” United States
v. Hebert, 131 F.3d 514, 521-22 (5th Cir. 1997) (quoting Gaudin,
515 U.S. at 510-12), cert. denied, 118 S. Ct. 1571 (1998).
Before Gaudin, it was established that a State was required to
prove each and every element of an offense charged and to persuade
the factfinder beyond a reasonable doubt of the facts necessary to
establish each of those elements. See Sullivan v. Louisiana, 508
U.S. 275, 277-79 (1993); see also In re Winship, 397 U.S. 358, 364
(1970). A judge may not direct a verdict of guilty in a criminal
case no matter how conclusive the evidence. See Connecticut v.
Johnson, 460 U.S. 73, 84 (1983).
The Texas Court of Criminal Appeals did not specifically
address this claim, instead focusing on another aspect of Hughes’s
“peace officer” claim: that Frederick was not in fact acting in
his duty as a “peace officer” because the stop of Hughes’s car was
41
unlawful. See Hughes, 897 S.W.2d at 297-98. The district court
did address and reject Hughes’s Gaudin claim, concluding that a
“fair reading” of the trial court’s instructions showed that the
“ultimate decision” on whether Frederick was acting as a peace
officer lay with the jury. Hughes, 991 F. Supp. at 633.
Hughes challenges the following portion of the jury charge:
[B]earing in mind the foregoing instructions, if you
believe from the evidence beyond a reasonable doubt that
on or about the 4th day of April, 1976, in Austin County,
Texas, the defendant, Billy George Hughes, Jr., did
intentionally or knowingly cause the death of Mark A.
Frederick, a peace officer acting in the lawful discharge
of an official duty, by shooting him with a gun, and the
said Billy George Hughes, Jr., then and there knew that
the said Mark A. Frederick was a peace officer, then you
will find the defendant, Billy George Hughes, Jr., guilty
of capital murder as charged in the indictment and so say
by your verdict. . . .
(emphasis as added by Hughes)
One of the “foregoing instructions” stated:
Before you can find the defendant guilty of capital
murder, you must find from the evidence beyond a
reasonable doubt that the defendant intentionally or
knowingly caused the death of Mark A. Frederick by
shooting him with a firearm, namely, a gun, and at the
time of the shooting, if any, the deceased, Mark A.
Frederick, was then and there a peace officer acting in
the lawful discharge of an official duty, and the
defendant then and there knew, at the time of the
shooting, if any, that Mark A. Frederick was a peace
officer.
If you should have a reasonable doubt as to the existence
of any of the foregoing elements, then you cannot find
the defendant guilty of capital murder.
(emphasis added)
Thus, the trial court explicitly instructed the jury that, in
42
order to convict Hughes of capital murder, it was required to find
that the victim was a “peace officer acting in the lawful discharge
of an official duty.”
When reviewing a challenged jury instruction under § 2254,
the Supreme Court has directed that “‘[t]he only question . . . is
whether the ailing instruction by itself so infected the entire
trial that the resulting conviction violates due process.’” Weeks
v. Scott, 55 F.3d 1059, 1065 (5th Cir. 1995) (quoting Estelle v.
McGuire, 502 U.S. 62, 72 (1991)) (internal quotation omitted). “It
is well-established that the instruction may not be judged in
artificial isolation, but must be considered in the context of the
instructions as a whole and the trial record.” McGuire, 502 U.S.
at 72 (internal quotation marks omitted). The court is to address
whether there is a “reasonable likelihood” that the jury applied
the challenged instruction in a “way that violates the
Constitution.” Id. (internal quotation marks omitted). Viewed
against this precedential backdrop, and considering the trial
court’s explicit instruction regarding the element in question, we
conclude that Hughes’s complaint regarding the instruction is
without merit.
9.
Hughes argues that the trial court’s instruction on causation
was unconstitutional in that it included an irrelevant and
“egregiously prejudicial” incorrect causation instruction when the
43
evidence in his case presented no issue as to whether some cause
other than his conduct might have caused the death. Hughes also
complains that another section of the instruction permitted the
jury to infer that he was guilty of capital murder if he had
actually intended only to commit “a different offense” from the one
with which he was charged. He cites Beck v. Alabama, 447 U.S. 625
(1980), in support of this claim.
Contrary to what Hughes says, these instructions imply a
defendant may be found guilty of capital murder only if he
intentionally or knowingly causes the death of another in specified
circumstances.
The jury charge contained the following paragraphs:
A person is criminally responsible if the result would
not have occurred but for his conduct, operating either
alone or concurrently with another cause, unless the
concurrent cause was clearly sufficient to produce the
result and the conduct of the actor clearly insufficient.
A person is nevertheless criminally responsible for
causing a result if the only difference between what
actually occurred and what he desired, contemplated, or
risked is that:
(1) a different offense was committed, or
(2) a different person or property was injured, harmed,
or otherwise affected.
(language challenged by Hughes emphasized)
Acknowledging that Hughes had raised his causation-instruction
claim under a constitutional rubric, the Court of Criminal Appeals
rejected the claim on state-law grounds. See Hughes, 897 S.W.2d at
297. That court determined that the “concurrent causation” charge
44
was erroneous because no real issue of concurrent causation was
presented by the evidence. Id. The court reasoned, however, that
the error did not require reversal for essentially the same reason:
The jury was not authorized to convict on the “theory of causation”
because the “abstract paragraph on causation did not apply that
theory to the facts of the instant case.” Id.
The “concurrent causation” instructions challenged by Hughes
were meaningless surplusage. That an instruction is erroneous
under state law is not a basis for federal habeas relief.
See McGuire, 502 U.S. at 71-72. The controlling question is
“whether the ailing instruction by itself so infected the entire
trial that the resulting conviction violates due process.” Id. at
72 (citation and internal quotation marks omitted). As the Court
of Criminal Appeals reasoned, it is highly unlikely that the jury
in Hughes’s case misapplied the erroneously included instruction,
because no factual question of concurrent causation was presented
by the trial evidence. See Hughes, 897 S.W.2d at 297.
Accordingly, no due process violation could have resulted from the
instruction’s inclusion in the overall charge.
10.
In an argument that closely tracks themes of his other claims,
Hughes maintains that the trial court erred in rejecting his
requested verdict form that would have allowed the jury to
“implement a life-sparing decision” on the basis of reliance by
45
“any single juror” on “any single mitigating circumstance.” He
relies primarily on McKoy v. North Carolina, 494 U.S. 433 (1990),
and Mills v. Maryland, 486 U.S. 367 (1988), for the proposition
that any death-sentence system that prevents a single juror from
effecting such a decision violates the Eighth and Fourteenth
Amendments. Hughes refers to a hypothetical scenario in which nine
jurors had concluded that his life should be spared because of
mitigating circumstances but would still be unable to effect that
decision because the Texas death-sentencing scheme requires at
least 10 jurors to agree that the answer to a special issue should
be “No.”
The Court of Criminal Appeals rejected these same contentions
after a thorough discussion of McKoy. See Hughes, 897 S.W.2d at
300-01. The court stressed that the death-sentencing scheme at
issue in McKoy violated the Constitution because it “prevented the
jury from considering any mitigating factor it did not unanimously
find.” Id. (emphasis added). In contrast, the Texas scheme “does
not require jurors to agree on the same mitigating evidence.” Id.
The “Texas scheme allows a single juror to give effect to
mitigating evidence by voting ‘no’ on any special issue. The fact
that they do not know the effect of their answers does not subject
[Hughes] to cruel and unusual punishment.” Id.
We have read McKoy in a similar fashion. In Jacobs, we
observed that “[t]he law in Texas is completely different from that
in Mills.” Jacobs, 31 F.3d at 1328. The system at issue in Mills
46
did not permit the jury to leave the mitigating-circumstances issue
blank and proceed to the next issue; only a unanimous decision on
the issue of mitigating circumstances could spare a defendant from
death row. See Mills, 486 U.S. at 378. Unlike the systems
discussed in Mills and McKoy, a single juror in Texas cannot
preclude the remainder of the jury from considering mitigating
evidence. See Jacobs, 31 F.3d at 1329. As suggested by the Texas
appellate court, a juror in a Texas death-penalty case can give
effect to mitigating evidence by voting “No” to special-issue
questions. The court’s disposition of Hughes’s McKoy-Mills claim
did not involve an unreasonable application of clearly established
federal law.
11.
Hughes speculates that the prosecution withheld exculpatory
evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963) and
Kyles v. Whitley, 514 U.S. 419 (1995): “If . . . the [Department
of Public Safety] conducted an internal investigation of the
circumstances surrounding Officer Frederick’s shooting that
uncovered facts inconsistent with, or directly contrary to, the
version of events set forth in Officer Reichert’s statement, those
undisclosed facts amount to a Brady-Kyles violation” (emphasis
added). He asserts that the district court erred by denying his
request for an evidentiary hearing on this matter.
A defendant’s right to due process is violated when, upon a
47
request for exculpatory evidence, the government conceals evidence
that is both favorable to the defendant and material to the
defendant’s guilt or punishment. See Brady, 373 U.S. at 87-88.
Exculpatory evidence as well as impeachment evidence falls under
the Brady rule. See Giglio v. United States, 405 U.S. 150, 154
(1972). Evidence is material when a reasonable probability exists
that its disclosure would have caused a different outcome at trial.
United States v. Bagley, 473 U.S. 667, 674-75 (1985). If the
nondisclosure could put the case in a completely different light so
as to undermine confidence in the outcome of the proceeding, the
defendant will have demonstrated the reasonable probability
necessary under this test. See Kyles, 514 U.S. at 434.
Materiality is judged according to the cumulative effect of all the
undisclosed evidence. See id. at 436.
Hughes’s conclusionary Brady claim is purely speculative. His
allegations on this matter reflect that he has no idea whether
there even was an internal investigation, much less whether such an
investigation revealed exculpatory facts. Such speculation does
not support a Brady claim. See United States v. Pretel, 939 F.2d
233, 240 (5th Cir. 1991).
Nor is Hughes entitled to an evidentiary hearing. “When there
is a factual dispute, [that,] if resolved in the petitioner’s
favor, would entitle [him] to relief and the state has not afforded
the petitioner a full and fair evidentiary hearing, a federal
habeas corpus petitioner is entitled to discovery and an
48
evidentiary hearing.” Goodwin v. Johnson, 132 F.3d 162, 178 (5th
Cir. 1998). Hughes’s conclusory allegations, however, are not
sufficient to require an evidentiary hearing. See Harris v.
Johnson, 81 F.3d 535, 540 (5th Cir. 1996).
In conclusion, we acknowledge Hughes’s able counsel’s
thorough, exhaustive, and creative effort, but we are unpersuaded
that a Certificate of Appealability should issue on any of Hughes’s
claims.
DENIED.
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